Pardon Me?: The Constitutional Case Against Presidential Self-Pardons

32 Pages Posted: 7 Dec 2008  

Brian C. Kalt

Michigan State University College of Law

Date Written: December 5, 2008

Abstract

Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear.

This note makes the case against the validity of self-pardons, using arguments from the Constitution's history, text, and structure, and from general legal principles.

In brief, the Framers either assumed that self-pardons were invalid or at most failed to consider the issue. The text they wrote does not say anything specific about self-pardons, but their failure to explicitly ban self-pardons cannot be read as a decision to allow them.

Looking at the structure of the Constitution and the government it creates, we find a general distaste for self-dealing and a specific notion of a presidency that is limited in ways that are inconsistent with allowing self-pardons.

Finally, general principles about the rule of law and against self-judging militate strongly in favor of the notion that self-pardons are invalid.

Keywords: pardon, self-pardon, president

Suggested Citation

Kalt, Brian C., Pardon Me?: The Constitutional Case Against Presidential Self-Pardons (December 5, 2008). Yale Law Journal, Vol. 106, No. 3, 1996-1997. Available at SSRN: https://ssrn.com/abstract=1312000

Brian C. Kalt (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6987 (Phone)
517-432-6879 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
750
rank
29,303
Abstract Views
6,664
PlumX